Congress Draws Battle Lines Over NSA Phone Snooping Program

In the wake of revelations about the National Security Agency's domestic surveillance programs over American phone records and Internet activities, Congressional leaders are demanding reform to rein in the agency's broad powers. How far will Congress go?

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In the wake of revelations about the National Security Agency's domestic surveillance programs over American phone records and Internet activities, Congressional leaders are demanding reform to rein in the agency's broad powers.

"The constant stream of disclosures about U.S. surveillance since June has surprised and appalled me as much as it has the American public and our international allies," Rep. Jim Sensenbrenner (R-Wis), the original author of the Patriot Act, said recently. Sensenbrenner has argued that the Patriot Act was never supposed to give NSA the powers it has claimed to collect domestic telephone records.

The question remains, however: exactly how far will these reforms go?

Sen. Dianne Feinstein (D-Calif), chair of the Senate Intelligence Committee, has introduced a bill that codifies the NSA's internal bulk phone records program into law so that there can be rules regulating what the NSA can do. In contrast, Sen. Patrick Leahy (D-Vermont), chair of the Senate Judiciary Committee, has teamed up with Sensenbrenner to introduce a bill that would ban the program altogether.

Endorse SurveillanceWhile opposing large-scale surveillance, Feinstein has defended the NSA's internal bulk phone call records collection program as a "vital national security program." The bill would explicitly authorize the NSA to collect Americans' phone records in bulk, including information such as the phone numbers called, the time of the calls, and the duration of each call. However, the bill explicitly states the NSA cannot collect the content of the communications.

The bill also expands the reporting requirements, defines how long the NSA can retain the records, and establishes criminal penalties for misusing intelligence capabilities. The bill, if passed, would also allow the NSA to continue targeting the cellphones of foreign nationals who enter the United States for up to 72 hours without a warrant. Feinstein's bill also would require the posts of NSA director and inspector general to be confirmed by the Senate, in the same way the posts for major government agencies, such as the Federal Bureau of Investigation and Department of Homeland Security are filled.

Sen. Mark Udall (D-Col) criticized Feinstein's bill as falling short of "real reform" because it "does not go far enough to address the NSA's overreaching domestic surveillance programs," he said.

Shut Down SurveillanceLeahy's bill, the United and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring (USA Freedom) Act, will shut down the NSA's program. Google, Apple, Facebook, Microsoft, Yahoo, and AOL have stated their support for this bill.

Feinstein's and Leahy's bills are on a collision course as Democrats try to figure out how to tackle the problem that is the NSA.

Then there is the bill introduced this month by Sen. Al Franken (D-Mich), chair of the Senate Judiciary's Subcommittee on Privacy, Technology, and the Law, which argues that the NSA has to be transparent in its activities. The Surveillance Transparency Act would require that the NSA disclose to the public how many people are having their data collected under each key foreign intelligence authority. The NSA would also have to estimate how many of the affected are Americans, and how many had their data actually looked at by an agent. The bill would also lift the gag order which currently prevents Internet and phone companies from informing customers about the number of orders to hand over information they are receiving from the government, and how many people have been affected by these orders.

The Supreme Court SilentWhile debate ranges in both chambers of Congress, the Electronic Privacy Information Center (EPIC) filed a petition to the Supreme Court last Friday, demanding immediate final judicial review of the bulk phone records program. The petition claims a secret federal court, in this case, the Foreign Intelligence Surveillance Court, improperly authorized the government to collect those electronic domestic telephone communication records.

Normally, these cases would have to work through lower federal courts, but EPIC lawyers argued "exceptional ramifications" to justify the petition. The Supreme Court declined without comment on Monday to review EPIC petition. If EPIC wants to pursue the lawsuit, the privacy rights group will have to go back to the lower courts. There have been other lawsuits against the NSA, but thus far the cases are all either pending or have been rejected.

The President has suggested "appropriate" changes were necessary to the program to restore trust from Americans and foreign allies. "Just because we can get information doesn't necessarily always mean that we should," he said at a news conference in Russia recently.

The President has appointed a committee to look into the NSA's current powers and to determine what kind of reforms, if any, are necessary. The committee is not expected to release a report until the end of the year, at the earliest.

For the moment, any curbs on the NSA's powers will have to come directly from Congress, but with only a few weeks left before the end of the year, it remains to be seen which direction the lawmakers will go.

Fahmida Y. Rashid is a senior analyst for business at PCMag.com. She focuses on ways businesses can use technology to work efficiently and easily. She is paranoid about security and privacy, and considers security implications when evaluating business technology. She has written for eWEEK, Dark Reading, and SecurityWeek covering security, core Internet infrastructure, and open source.
Follow me on Twitter: zdfyrashid
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